People v. Rhodes

2020 IL App (1st) 173119No. 1-17-3119
SECOND DIVISION
September 29, 2020
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 12CR3075
)
KENNETH RHODES, )
) The Honorable
Defendant-Appellant. ) Alfredo Maldonado,
) Judge Presiding.
____________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and
opinion.
OPINION
¶1 Following a jury trial, defendant Kenneth Rhodes was convicted of first degree murder and
was sentenced to life imprisonment. On appeal, defendant seeks reversal of his conviction and the
sentence imposed thereon, arguing that his trial attorneys labored under a per se conflict of interest
and that he was thus deprived of his constitutionally protected right to conflict-free counsel. For
the reasons explained herein, we affirm the judgment of the circuit court.
¶2 BACKGROUND
¶3 On January 13, 2012, Pauline Betts-Bracy and Nathaniel Bracy were shot and killed in
their home. Defendant, Betts-Bracy’s brother, was subsequently arrested and charged with
1-17-3119
multiple counts of first degree murder and attorneys from the Cook County Public Defender’s
Office were appointed to represent him. Assistant Public Defender (APD) Ed Koziboski first
appeared on behalf of defendant in March 2012. Over the years, he filed various pleadings and
litigated various pretrial motions on defendant’s behalf, including answers to discovery, motions
to exclude DNA and serology evidence, and motions in limine. On multiple occasions, APD
Koziboski was assisted by other APDs including APD William Bolan. On January 9, 2017, during
the course of their representation of defendant and approximately six weeks before the case was
set for trial, APDs Koziboski and Bolan were present when defendant purportedly struck a sheriff’s
deputy while in custody, which led to their client being charged with the offense of aggravated
battery to a peace officer.
¶4 Thereafter, on March 20, 2017, APDs Koziboski and Bolan filed a motion seeking to
withdraw as defendant’s counsel. In the motion, they alleged that their continued representation of
defendant was impaired by a conflict of interest, citing their presence during the alleged altercation
between defendant and the sheriff’s deputy and their status as “potential witnesses.” Specifically,
they argued:
“A conflict of interest exists where the attorneys representing a client’s best interest in [a]
matter are compelled to bear witness against that client in another matter, and potentially
testify to his detriment. Illinois Rules of Professional Conduct of 2010 address the issue of
attorneys playing a dual role as advocate and witness and provide that ‘Combining the roles
of advocate and witness can prejudice the tribunal and the opposing party and can also
involve a conflict of interest between the lawyer and client.’ ” 1
1
Rule 3.7 of the Illinois Rules of Professional Conduct of 2010 addresses the issue of a lawyer as a
witness and provides as follows:
-2-
1-17-3119
See Ill. R. Prof’l Conduct (2010) R. 37 cmt. 1 (eff. Jan. 1, 2010). Although the motion set forth
the factual basis for the purported conflict of interest, it did not specify whether APDs Koziboski
and Bolan believed their continued representation of defendant amounted to an actual conflict of
interest or a per se conflict of interest.
¶5 The State, in turn, filed a response opposing the motion to withdraw. In its response, the
State argued that the mere possibility that attorneys Koziboski and Bolan could be called as
witnesses in a separate criminal proceeding did not support a finding that their continued
representation of defendant in his upcoming murder trial was impaired by an actual or per se
conflict of interest. Moreover, the State asserted that Rule 3.7 of the Illinois Rules of Professional
Conduct of 2010 (Ill. R. Prof’l Conduct (2010) R. 3.7 (eff. Jan. 1, 2010)) was inapplicable because
it “does not address situations where a defense attorney may be called to testify in another matter,
only where an attorney may be a necessary witness contemporaneous with his representation.”
(Emphasis in original.) Accordingly, the State urged the circuit court to deny the motion to
withdraw.
¶6 The court presided over a hearing on the motion, and after reviewing the parties’ filings
and hearing the arguments made in support of their respective filings, the court denied defendant’s
attorneys’ motion to withdraw. In doing so, the court found that the mere fact that attorneys
Koziboski and Bolan had given interviews and were potential witnesses against defendant in a
“(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the
case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is
likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.” Ill. R.
Prof’l Conduct (2010) R. 3.7 (eff. Jan. 1, 2010).
-3-
1-17-3119
separate unelected criminal matter did not give rise to an actual or per se conflict of interest. The
court reasoned:
“Certainly I don’t see that—the fact that Mr. Bolan and Mr. Koziboski were simply
present for these alleged actions [against the sheriff’s deputy] by [defendant] doesn’t in
any way create an undivided loyalty by them to defendant, nor does the fact that they would
represent [defendant] in this murder case in any way have a possibility of leading to a
reversal or even another factor, just the appearance of impropriety here.
I don’t see that Rule 3.7 of the Professional Rules of Conduct [is] applicable in this
case because I think that rule is—deals with contemporaneous representation and testifying
or being a witness in the same matter, not a different matter.
That’s what the unelected matter is. It is a completely distinct and separate matter.
In fact, I think that having the defense counsel removed from this case would lead to a very
real and actual harm to [defendant]. The defense has been on this case since the beginning
of this case. This matter is on the eve of trial, and there has been a substantial amount of
work done by defense counsel here.
I don’t see that there is a potential conflict. The fact that, again, that you were named
in a report is just too speculative. There simply is not a potential conflict here that in any
way requires defense counsel to be disqualified in this matter. Accordingly, the Defense’s
motion is denied.”
¶7 Following the court’s denial of defense counsels’ motion to withdraw, the cause proceeded
to trial. 2 At trial, the State called various witnesses who testified that defendant had been engaged
2
Because defendant does not raise any argument concerning the sufficiency of the evidence or
contest any evidentiary rulings, we elect not to detail all the evidence presented at trial; rather, we will
simply provide a brief summary of that evidence.
-4-
1-17-3119
in an ongoing dispute with his sister over ownership of a condominium left to them by their
deceased mother. Defendant had made several threats to kill his sister as a result of that dispute
and had made a similar threat the morning of the murders when he visited the condo unannounced.
Defendant’s unannounced visit led his sister to call the police, and Betts-Bracy informed her
daughter that she would be seeking an order of protection against her brother. The State also
presented ballistics evidence that the bullets recovered from the crime scene and the victims’
bodies were fired from a .357 Magnum revolver, a gun linked to defendant. In addition, gunshot
residue was found on defendant’s jacket and his sister’s DNA and blood was detected on his
clothing. Defendant’s attorneys cross-examined the State’s witnesses and called their own forensic
DNA expert to testify. Defendant elected not to testify.
¶8 Ultimately, after hearing the aforementioned evidence, the jury returned with a verdict
finding defendant guilty of the first degree murder of his sister and brother-in-law. At the
sentencing hearing that followed, the court sentenced defendant to a mandatory term of life
imprisonment. This appeal followed.
¶9 ANALYSIS
¶ 10 On appeal, defendant contends that the circuit court violated his right to conflict-free
counsel when it denied his attorneys’ pretrial motion to withdraw as his trial counsel because they
were potential witnesses against him in a separate pending criminal case.
¶ 11 The State responds that the circuit court properly denied defendant’s attorneys’ motion to
withdraw because there was no per se conflict of interest.
¶ 12 A criminal defendant’s constitutional right to effective assistance of counsel encompasses
the right to conflict-free representation. People v. Green, 2020 IL 125005, ¶ 20; People v.
Peterson, 2017 IL 120331, ¶ 102. “Conflict-free representation means ‘assistance by an attorney
-5-
1-17-3119
whose allegiance to his client is not diluted by conflicting interests or inconsistent obligations.’ ”
Green, 2020 IL 125005, ¶ 20 (quoting People v. Spreitzer, 123 Ill. 2d 1, 13-14 (1988)). Illinois
courts have recognized two categories of conflict of interest: actual conflicts of interest and per se
conflicts of interest. Id.; People v. Fields, 2012 IL 112438, ¶ 17.
¶ 13 An actual conflict of interest “generally, if not exclusively, involves joint or multiple
representation.” People v. Austin M., 2012 IL 111194, ¶ 82. Where there is an actual conflict of
interest, a defendant seeking a new trial need not establish that the conflict actually contributed to
the conviction; rather, he must simply show that the conflict adversely affected his attorney’s trial
performance. Id. That is, the defendant “must point to some specific defect in his counsel’s
strategy, tactics, or decision[-]making attributable to the alleged [actual] conflict of interest.” Id.¶ 14 In contrast, a “per se conflict of interest exists where certain facts about a defense
attorney’s status, by themselves, engender a disabling conflict,” such as when the “attorney has a
tie to a person or entity that would benefit from an unfavorable verdict for the defendant.” Fields,
2012 IL 112438, ¶ 17. Courts have identified three situations where a per se conflict will be found
to exist: (1) where defense counsel has a prior or contemporaneous relationship with a victim,
prosecution, or an entity assisting the prosecution; (2) where defense counsel contemporaneously
represents a prosecution witness; and (3) where defense counsel was a former prosecutor who had
been personally involved with the prior prosecution of the defendant. Green, 2020 IL 125005,
¶ 24. The justification for recognizing these three categories as per se conflicts of interests is that
“in each situation, the defense counsel’s association or tie to the victim, the prosecution, or a
prosecution witness may have subtle or subliminal effects on counsel’s performance that are
difficult to detect and demonstrate.” Peterson, 2017 IL 120331, ¶ 103. Because the “very existence
of” a per se conflict could “inadvertently affect counsel’s performance in ways difficult to detect
-6-
1-17-3119
and demonstrate” and could “lead to the possibility that the attorney would be unnecessarily
subject to charges that his representation was less than faithful,” there is “no need to show that the
attorney’s actual performance was affected by existence of the [per se] conflict.” People v.
Holmes, 141 Ill. 2d 204, 219 (1990). Accordingly, unless the defendant waives his right to conflict-
free representation, the fact that his attorney labored under a per se conflict of interest is automatic
grounds for reversal. Fields, 2012 IL 112438, ¶ 18. Ultimately, “[w]hen deciding whether a per se
conflict of interest exists, the reviewing court should make a ‘realistic appraisal of defense
counsel’s professional relationship to someone other than the defendant under the circumstances
of each case.’ ” Austin M., 2012 IL 111194, ¶ 83 (quoting People v. Daly, 341 Ill. App. 3d 372,
376 (2003)). Where the underlying facts are not in dispute, the issue of whether a per se conflict
of interest exists is a legal question, which is subject to de novo review. Fields, 2012 IL 112438,
¶ 19.
¶ 15 Here, defendant does not argue that his trial attorneys’ representation was impaired by an
actual conflict of interest; rather, citing the first recognized category of per se conflicts, he submits
that his attorneys’ statuses as potential witnesses against him in a separate pending criminal matter
constituted “an ongoing ‘contemporaneous association’ with the State,” and thus amounted to a
per se conflict of interest.
¶ 16 Courts that have found a per se conflict of interest based on a defense attorney’s
“contemporaneous association with the prosecution” have done so in limited situations, such as
where the attorney has employment ties to a prosecuting entity at the same time that the attorney
is representing the defendant. See, e.g., People v. Washington, 101 Ill. 2d 104, 112-13 (1984)
(finding a per se conflict of interest where defense counsel also served as a part-time prosecutor
for the same municipality that was prosecuting the defendant, reasoning that the attorney’s duty of
-7-
1-17-3119
undivided loyalty to the defendant could possibly be affected by his contemporaneous conflicting
obligations as both defense attorney and prosecutor); People v. Fife, 76 Ill. 2d 418, 424-25 (1979)
(finding a per se conflict of interest where defense counsel also served as a part-time Assistant
Attorney General where he handled unemployment compensation cases for the State, reasoning
that defense counsel’s performance at the defendant’s criminal trial could potentially be
“subliminal[ly]” affected by his contemporaneous association with the Attorney General’s office).
Here, there is no dispute that neither APD Koziboski nor APD Bolan had any employment ties to
the state’s attorney’s office at the time that they represented defendant. Moreover, defendant fails
to cite to any case in which a court has found that the mere possibility that a defense attorney could
be called as a witness to testify against his or her client in a separate unrelated criminal prosecution
constituted a “contemporaneous association” with the prosecution and a per se conflict of interest.
Indeed, we fail to see how the mere possibility that defendant’s trial attorneys could potentially be
called to testify as civilian witnesses against defendant in a future unrelated criminal proceeding
could impact their professional obligations and loyalty to defendant during their representation of
him during his murder trial. Accordingly, we agree with the circuit court’s conclusion that no
per se conflict of interest exited in this case.
¶ 17 In so finding, we are unpersuaded by defendant’s reliance on People v. James, 362 Ill.
App. 3d 250 (2005). In that case, the defendant spit on and struck his attorney in open court during
the State’s opening argument of his murder trial, which resulted in a mistrial and charges of
aggravated battery being filed against him. Id. at 252-53. His attorney was then provided with an
opportunity to withdraw as the defendant’s attorney but declined, informing the court that he bore
no ill will toward his client and indicated that he believed that the defendant had only struck him
to obtain a mistrial. Id. Counsel further informed the court that he did not want the State to file any
-8-
1-17-3119
additional charges against his client and that he would not voluntarily testify as a witness against
him. Id. at 253. The court ultimately permitted defense counsel to remain the defendant’s attorney
over the State’s objection, and the cause proceeded to a new trial where the defendant was
ultimately convicted of murder. Id. On appeal, the defendant sought reversal of his murder
conviction, arguing that his attorney labored under a per se conflict of interest due to the
defendant’s prior attack on him. Id.
¶ 18 The Fourth District, however, disagreed, finding that the case did not fall within one of the
three recognized categories of per se conflicts of interests. Id. at 254. In addition, the court noted
that defendant’s attorney indicated that he bore no ill will toward his client and that he would not
be a voluntary witness against him; rather, he believed the defendant’s actions stemmed from his
desire to obtain a mistrial. Id. The court likened the case to situations in which courts have refused
to find a per se conflict when defendants file lawsuits or Attorney Registration and Disciplinary
Commission complaints against their attorneys, reasoning that to find a per se conflict of interest
exists in such situations would simply encourage other defendants to engage in similar conduct to
obtain new attorneys and delay the State from trying them. Id. at 255. The court further found that
the fact that aggravated battery charges had been brought against the defendant did not alter its
analysis, stating “the State’s pending charges may lead to a conflict of interest but is not a conflict
per se.” Id.
¶ 19 Defendant suggests that a different result should be obtained here because his attorneys,
unlike the attorney in James, did express misgivings about continuing their representation by filing
a motion to withdraw as trial counsel. Although this factual distinction exists, we do not find that
it warrants a contrary result. The Fourth District’s holding in James was not based on the defense
attorney’s subjective feelings about his ability to represent his client and the fact that he had not
-9-
1-17-3119
filed a motion to withdraw as the defendant’s attorney; rather, it was primarily based on its
conclusion that the defendant’s conduct, which resulted in the possibility that his attorney could
potentially be called to provide testimony as the victim of the defendant’s battery, did not fall
within the three recognized categories in which a per se conflict of interest has been found to exist.
We agree with the Fourth District’s conclusion as well as its concern that recognizing a per se
conflict in such circumstances could encourage defendants to engage in similar conduct and act
violently either toward or in front of their attorneys in an effort to delay their prosecutions.
¶ 20 Accordingly, because we find that defendant’s attorneys’ statuses as potential witnesses in
a possible separate criminal prosecution against their client did not constitute a “contemporaneous
association” with the State at the time of defendant’s murder trial, we conclude that defendant’s
attorneys did not labor under a per se conflict of interest and that the circuit court did not err in
denying their motion to withdraw.
¶ 21 CONCLUSION
¶ 22 The judgment of the circuit court is affirmed.
¶ 23 Affirmed.
-10-
1-17-3119
No. 1-17-3119
Cite as: People v. Rhodes, 2020 IL App (1st) 173119Decision Under Review: Appeal from the Circuit Court of Cook County, No. 12-CR-3075;
the Hon. Alfredo Maldonado, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Carolyn R. Klarquist, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan
for J. Spellberg, David H. Iskowich, and Sharon Kanter, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
-11-